Judge to rule on November 22 on challenge to EBC's new Tobago seats

ON NOVEMBER 22, the High Court will deliver its ruling in the lawsuit filed by a Tobago resident against the Elections and Boundaries Commission (EBC) over its report which led to the creation of three new electoral districts on the island.

Justice Carol Gobin set the date on Monday to deliver her ruling in the challenge by June Jack McKenzie, of Bacolet, Tobago, a former constituency secretary for the late Arthur NR Robinson, a former Tobago East MP.

Gobin has already agreed to hold a rolled-up hearing incorporating the leave application and the substantive judicial review claim and will also hear a preliminary argument by the Attorney General.

McKenzie is represented by attorneys Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Rhea Khan.

Representing the EBC are Deborah Peake, SC, and Ravi Heffes-Doon. Douglas Mendes, SC, and Ravindra Nanga are representing the Attorney General, who has entered the proceedings as an interested party without objection from Jack-McKenzie.

At Monday’s virtual hearing, Gobin set a strict timeline for the filing of affidavits and submissions after it was pointed out that the election date had been announced as December 6.

In her claim, Jack-McKenzie complained that some of the methodology used by the EBC to determine the new districts was outside the commission’s statutory powers.

She will ask the court to declare the EBC’s consideration of “community fragmentation and ensuring they were not divided” in arriving at the new districts was unlawful and should be voided and for the 2021 EBC Order, proclaimed by the President, which gave effect to the creation of the three additional seats, to be declared unlawful.

Jack-McKenzie wants the court to quash the order and the EBC’s report.

Her lawsuit claims the EBC breached its statutory duties under Section 4 of the Election and Boundaries Commission (Local Government and Tobago House of Assembly) Act, by allegedly using considerations not expressly or impliedly conferred by the legislation.

Her lawyers contend that when the EBC decided to split two existing districts into four new districts, this was done on a mathematical basis, with the districts with the highest number of electors being selected.

“However, when the intended defendant (the EBC) came to exercise its discretion in relation to the new 15th district, the intended defendant bypasses the largest electoral area for the creation of the new 15th district and instead uses the second largest electoral district for the creation of this 15th district,” her judicial review application said.

“The intended defendant, in its report, states that this was done to avoid 'fragmenting' 'communities' within the Providence/ Mason Hall/Moriah electoral district,” it said, adding that the EBC’s consideration of “community boundaries” was “vague, nebulous and uncertain.

“There is too great a risk of arbitrary application,” the claim said, adding that natural boundaries such as major highways and rivers should have been considered.

In response, the EBC’s chief election officer Fern Narcis-Scope said the matter was closed, as the EBC report was submitted to the House of Representatives on September 10 and passed five days later, before the President issued the Elections and Boundaries Commission (Local Government and Tobago House of Assembly) (Tobago) Order 2021.

Narcis-Scope denied any wrongdoing in relation to the commission’s report and said it was consistent with the statutorily prescribed procedure.

The EBC maintained the commission acted within the law and the Constitution and insisted it cannot be said it took into account irrelevant considerations in compiling its report.

It also rejected the view that the commission was tasked to redraft boundaries to solve a “particular problem involving two political entities,” insisting that it did its duties in accordance with its obligation prescribed by law, which was to define and review electoral boundaries, which eventually led to the increase in the number of districts from 12 to 15.

The EBC "did not identify “threats to the integrity of communities” and did not embark on any determination of “which communities could not be fractured,” it said in response to Jack-McKenzie.

The move to increase the electoral districts was the result of a six-six deadlock between the People’s National Movement (PNM) and Progressive Democratic Patriots (PDP) in the THA elections in January.

The three new districts are Lambeau/Lowlands, Darryl Spring/Whim and Mt St George/Goodwood. All but two of the original 12 districts were slightly modified to make the change.

Parties have already started their election campaigning and internal screening of candidates.

The election is set to be a three-horse race between the PNM, PDP and the Innovative Democratic Alliance (IDA), led by former PNM official Dr Denise Tsoiafatt Angus.